7th Circuit affirms sentence, prompts withdrawal of ineffective counsel claim in pharmacy robbery

An Indianapolis man who at 17 robbed a pharmacy then shot and killed one of his accomplices will have to serve his 19-year sentence after the 7th Circuit Court of Appeals found the district court was allowed to consider the acquitted charge of murder when calculating the sentence.

Dayonta McClinton was part of a group of six who entered a CVS pharmacy in October 2015, pointing guns and demanding cash and drugs. They were only able to get one bottle of hydrocodone, promethazine syrup and acetaminophen because the pharmacy technician could not get access to a majority of the drugs, which were stored in a time-delayed safe.

The team of robbers fled the store, then drove to an alley about 10 minutes away to split the proceeds. Malik Perry took all the drugs and left the vehicle, declaring “ain’t nobody getting none.” McClinton followed Perry and shot him four times in the back, killing him.

A jury found McClinton guilty of robbing the pharmacy in violation of 18 U.S.C. § 1951(a) and brandishing a firearm during the CVS robbery in violation of 18 U.S.C. § 924(c)(1)(A)(ii). But he was found not guilty of robbing Perry in violation of 18 U.S.C. § 1951(a) and causing death while using a firearm during and in relation to the robbery of Perry in violation of 18 U.S.C. § 924(j)(1).

However, at sentencing, the U.S. District Court for the Southern District of Indiana found by a preponderance of the evidence that McClinton was responsible for Perry’s murder. Consequently, his sentence was enhanced and he was sentenced to 19 years in federal prison.

On appeal, McClinton argued the district court could not consider acquitted crimes when calculating his sentence.

The 7th Circuit acknowledged McClinton’s argument has been a source of dissension at the U.S. Supreme Court. Justices have questioned the fairness and constitutionality of allowing courts to include acquitted conduct when calculating sentences.

In particular, the court pointed to Jones v. United States, 574 U.S. 948, 949-50 (2014), and United States v. Watts, 519 U.S. at 170 (1997).

“But despite the long list of dissents and concurrences on the matter, it is still the law in this circuit — as it must be given the Supreme Court’s holding — that a sentencing court may consider conduct underlying the acquitted charge, so long as that conduct has been found by a preponderance of the evidence,” Judge Ilana Rovner wrote for the appellate panel in United States of America v. Dayonta McClinton, 20-2860. “Until such time as the Supreme Court alters its holding, we must follow its precedent.”

The circuit court did review the district court’s factual findings that Perry’s murder was relevant conduct, but found no clear error.

As Rovner explained, Perry’s murder occurred in the course of the planned robbery. The connection to the crime was not severed just because McClinton and his accomplices traveled a safe distance away from the pharmacy and waited a few minutes before divvying up the drugs and cash.

Moreover, McClinton became angry when Perry refused to share the drugs and, because the offenders had decided to arm themselves for the robbery, McClinton had a firearm ready to shoot Perry.

“There is no doubt that under Watts, the murder was relevant conduct that could be used to calculate McClinton’s sentence,” Rovner concluded.

McClinton also tried to make a claim of ineffective assistance of counsel before the 7th Circuit.

The defendant, who was 17 at the time of the pharmacy robbery, argued that his attorney, Ralph Staples, who represented him during the juvenile transfer proceeding, was ineffective for failing to appeal the order transferring him to adult court.

In fact, Staples was sanctioned $1,000 by the district court for failing to appear for a status conference, show cause hearing and McClinton’s initial hearing upon transfer for adult prosecution.

McClinton was so adamant about bringing the claim that he even moved to file his own pro se supplementary brief in addition to his appellate lawyer’s brief. However, with “some prompting from the panel,” the attorney withdrew the claim.

Rovner explained the withdrawal enabled McClinton to preserve the claim at a secondary or collateral proceeding where the defendant can develop and present all the evidence, including a deposition from the attorney.

If McClinton had made the claim as part of his direct appeal, he could have lost and been prohibited from raising it again. That’s because the court’s review is limited to the factual record developed at the district court, which does not include evidence concerning prior counsel’s advice and decision making.

“At the end of the day, counsel’s duty to vigorously defend her client in an effective manner means that she should not make a claim that she knows has zero chance of success, when she knows that reserving such a claim for a collateral proceeding is the only means of preserving whatever chance of success on the merits that the claim might have,” Rovner wrote. “… In this case, McClinton’s counsel chose the only competent strategy by withdrawing the claim of ineffective assistance, thus preserving the claim for a later proceeding under 28 U.S.C. § 2255.”

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